Microsoft attorney outlines Android patent tactics

It takes flowcharts to keep track of all the mobile patent lawsuits under way.

Apple sued HTC, while Kodak sued Apple, Samsung and Sony. RIM filed suit against Kodak and Motorola. And what are called nonpracticing entities (or patent trolls, if you prefer) such as Intellectual Ventures and NTP have sued pretty much the lot of them.

It can seem - and some have argued - that the patent system itself is broken, forcing companies to spend more time and money on legal battles than research and development.

But that view betrays an ignorance of history, according to Horacio Gutiérrez, the deputy general counsel in charge of Microsoft's intellectual property group.

In an interview with The Chronicle, he said that a flurry of patent disputes has followed any new disruptive technology at least as far back as the telegraph, as companies sort out whose inventions the latest innovations built upon. The smart phone, a veritable Swiss Army knife of digital tools, is no exception.

It's an ugly process, but it's normal and necessary, he said. Without patent protections, companies don't have the incentive to spend years and millions developing new products. And without licensing agreements and the occasional lawsuit, their competitors wouldn't respect the investments and inventions protected by those patents.

Like many companies, Microsoft is playing both defense and offense in today's patent wars. It's being sued by NTP, but it has also demanded that companies using Google's Android mobile operating system pay licensing fees for a number of Microsoft's patents that it claims the free software infringes upon.

In March, it filed suit against Barnes & Noble and its device manufacturers, after the company refused to pay up for its Android-based Nook e-readers. In its legal response, Barnes & Noble said the Redmond, Wash., software giant was pushing for licensing fees that were higher than it charges for its own mobile operating system, and questioned the validity of the patents in question, saying they relate to "arbitrary, outmoded or nonessential design features."

Google has said Microsoft is trying to "extort" profit from companies after failing to gain a substantial share of the smart-phone market itself.

Gutiérrez, who has been outspoken on patent issues in blog posts and press interviews, strongly disagrees. In our interview, he argued that Google is simply "standing on the shoulders" of companies like Microsoft and that licensing agreements are the healthy solution to these patent conflicts.

Q:Microsoft has struck at least 10 licensing deals with companies using Android, including Samsung and HTC, and you've sued Barnes & Noble. Some have called it a campaign against Android, others patent trolling. How would you describe it?

A: Every time there are these technologies that are really disruptive, there are patent cases. People who lived in that particular time would look and say, "What a mess, we certainly must live in the worst time from an (intellectual property) perspective. The system is broken and something has to be done to fix it."

That's the situation we're in right now. If you think of a mobile phone or a tablet computer today, they're not your father's or your grandfather's cell phone.

The devices have evolved and become so much more powerful, because they've added a number of technologies that pre-existed the new devices. In general, they use software to become general-purpose computers.

As we've seen historically, there is a period of unrest and a period of readjustment, until the claims on the ownership of different pieces of technology are well known. There's a period of actually licensing and cross-licensing that makes these issues disappear into the background.

When you buy the device as a consumer, you get it out of the box and enjoy it immediately. What you don't see is an invisible web of licensing and cross-licensing arrangements that actually make it possible.

So licensing is not some nefarious thing that people should be worried about. Licensing is, in fact, the solution to the patent problem that people are reacting so negatively about.

Q:So what are Microsoft's key innovations? Can you give us a sense of one or two of the critical features in Android that Microsoft argues it invented?

A: There are a number of technologies that have to do with really critical features that make smart phones what they are today. For example, the ability to synchronize the content that you have in your phone with the information in the server of your company or in your computer at home.

But then there are all these other features that just make the phone much more efficient, things that are embedded deeply in the operating system. Microsoft has invested for decades more money than anyone else in research and development directed toward the efficiency of operating systems. These devices have moved from having a rudimentary phone system to being a full-fledged computer, with a sophisticated, modern operating system.

In doing that, they have really stood on the shoulder of companies like Microsoft who made all these billions of dollars in investments.

Q:In the Barnes & Noble case, one of the patents in question covers a graphical feature that indicates when a Web page is loading and disappears when it's gone. How novel of an invention is that really?

A: The key differentiating feature, among devices, is the experience that the user enjoys. So anyone can take a particular feature, particularly someone not versed on patent law and technology topics, and then belittle the significance of an invention.

Many times when you express those ideas at a high level, they seem obvious to anyone who really doesn't understand the particular ways in which certain effects are achieved in software. It's not just one feature, but a whole series of features in a phone or another mobile device that really make up the whole experience of the user.

Those patents (cover) individual features that have been created in a particularly inventive way by Microsoft and that have been recognized by the patent office. It's now being tested in court. It remains to be seen what courts say; they will be the ultimate arbiter. But we believe they're solid patents.

Q:Some argue that software shouldn't be patentable; that it's too easy to independently arrive at the same solution and leads to these sorts of protracted disputes we've discussed. Talk about the benefits of patents in this industry.

A: It's not the idea or the final outcome that is patentable; it's the particular way in which the outcome is brought about. So two different means of getting to the same end would be independently patentable.

But I think the most important part here is that a lot of the innovation that is happening today is really happening in the software space. Many things that earlier were implemented in hardware - think of telephone switching and circuits - are now implemented in software.

So the question of whether software should be patentable is, in a sense, the same as asking whether a significant part of the technological innovation happening nowadays should receive patent protection.

If you look at the development of the technology industry in the U.S., intellectual property protection has been essential in bringing about the success of this industry throughout the 20th century and even before that. Study after study has demonstrated that the patent system has actually played a role in securing the leadership that the United States has in this field.